Markisic v State of New South Wales & Ors

Supreme Court of NSW|2014-11-11|Before: Price J, Bryson JA

Judgment

His Honour: In Markisic v Department of Community Services & Ors [2012] NSWSC 1197, I referred to the question as to whether Dragan Markisic, the plaintiff, should be granted leave to file a proposed amended statement of claim (other torts) (MFI A). For the sake of convenience, the proposed pleading will be referred to by the acronym 'ASOC'. The proposed defendants are the State of New South Wales (the State) and the Commonwealth of Australia (the Commonwealth).
Both Ms Hartstein, who appeared for the State and Mr Robinson SC, who appeared for the Commonwealth, argued that the ASOC was precluded by the judgment of the Court of Appeal in Markisic v Department of Community Services of New South Wales & Ors (No 2) ('Markisic (No 2)') [2006] NSWCA 321. The State and the Commonwealth contend that leave should not be granted and the current proceedings should be formally dismissed.
The plaintiff submitted that when the ASOC was compared to the pleading that was considered by the Court of Appeal, the pleadings are completely different. Further facts had come to his knowledge after the court's judgment, which he had used in drafting the ASOC. The causes of action were founded on other torts that were never before the Court of Appeal. The plaintiff drew my attention to the following passage that appears in Bryson JA's judgment in Markisic v Department of Community Services & Ors (Unreported, Supreme Court of New South Wales Court of Appeal, Bryson JA, 29 January 2007) at 7: "He referred particularly to paragraphs 58, 59 and 60 of the judgment of the Court of Appeal [2006] NSWCA 321. It is I think quite manifest to Mr Markisic as much as to anyone else that the paragraphs referred to, and indeed the whole judgment, did not finally dispose of the rights of any party on any subject; except for the procedural matter relating to the defamation claim in respect of which an appeal was allowed and directions were made. Except in relation to the defamation claim the judgment did not, and could not, dispose of any rights, it did no more than refuse leave to appeal except in relation to re-pleading the defamation claim."

Background

In Markisic (No 2), Giles JA detailed the history of the proceedings between the plaintiff, the State, the Commonwealth and various other defendants and no further elaboration is required here. However, it is useful to recount what occurred in Markisic (No 2).
The plaintiff's principal claim in the Court of Appeal was for leave to appeal from the decision of Smart AJ in Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373, 1374, 1375 (conveniently referred to as 'Markisic (No 1)') upon the plaintiff's application for leave to file an amended statement of claim. Smart AJ ordered that the plaintiff's application for leave to file the draft amended statement of claim be dismissed. He dismissed the proceedings against various defendants including the State, Flohm J, Nicholson CJ and Rowlands J. As to the Commonwealth, his Honour granted the plaintiff: "...leave to apply to amend his statement of claim limiting his claim to the removal (or unlawful removal) of the child from the possession of the plaintiff (via his mother) without a warrant for such removal and consequential damage, such application to be made by motion within 42 days and to be accompanied by a proposed amended statement of claim limited as mentioned and correct as to form and substance. This encompasses the nervous shock allegedly suffered by the plaintiff as a result of the AFP's alleged negligence in doing so without a warrant and the nervous shock allegedly suffered by the plaintiff involved in the trespass to the child."
The Commonwealth applied for leave to cross-appeal against Smart AJ's grant of leave to the plaintiff to apply to amend his statement of claim.
In Markisic (No 2) at [88]-[90], [91]-[93] (Giles JA with whom Santow and Ipp JJA agreed) said: "88 Without closer attention to the law and its application to the occasions of publication of the separate publications, which did not occur in the hearing of Mr Markisic's leave application in this Court, Smart AJ's disposal of the defamation claims should in my view be reviewed; but in the absence of proper submissions I do not think that this Court should decide whether, to the level of arguability appropriate to leave to apply to re-plead the defamation claims, absolute privilege attaches or does not attach to the occasions of the publications and, if the publications are in different positions, to which ones. This Court should not embark on that task without the assistance of proper submissions, nor would it be fair to the parties to do so; and the task is better undertaken by a judge at first instance, with the benefit of proper submissions. 89 The defamation claims, if they can be supported in fact and law and entitle Mr Markisic to damages for injury to his reputation, can not be regarded as trivial. They are brought against the State and the Commonwealth, on allegations that the publications were published by their officers and agents. They are not dependent on flaws in the proceedings in the Family Court or in the implementation of the orders of that Court. In my opinion, leave to appeal from Smart AJ's decision should be granted so far as his Honour refused leave to apply to re-plead the defamation claims, and the appeal should be allowed; not with a holding in this Court adverse to absolute privilege, but in order that in the application to re-plead the defamation claims there can be considered, if the State and the Commonwealth oppose the application on that basis, whether the application should be refused because the defamation claims are futile. 90 Allowing the appeal to this extent means the grant of leave to apply to re-plead the defamation claims, but the leave does not permit Mr Markisic to add to the publications on which he relies or to the imputations attributed to the publications. The re-pleading will only be to put in proper form the substance of the defamation claims in the fresh draft amended statement of claim. Nor does anything I have said restrict the State and the Commonwealth in the grounds on which they may oppose the grant of leave to re-plead. … 91 The leave to apply to re-plead is only as to the defamation claims. The orders of Smart AJ otherwise dismissing the proceedings against the State, and dismissing the proceedings against the Trustees, Qantas, Justice Flohm, Chief Justice Nicholson and Justice Rowlands remain, and save as to the defamation claims the proceedings against the Commonwealth are dismissed. Since all that potentially remains of Mr Markisic's proceedings is the defamation claims, the proceedings should be entered in the Defamation List and come before a judge in that List. 92 It is not necessary to go to the affidavits served by Mr Markisic in compliance with the Court's order of 1 May 2006. 93 While Mr Markisic may be able to continue with the defamation claims, they occupied very little of the written or oral submissions. Mr Markisic has in real terms failed on the application for leave to appeal and the application for leave to cross-appeal, and in the disposition of costs no more than a small alleviation of the costs payable to the State and the Commonwealth is appropriate" (italics added).
Accordingly, Giles JA granted the plaintiff leave to appeal that was limited to leave to apply to re-plead the defamation claims against the State and the Commonwealth. He was granted leave to apply to a judge in the Defamation List for leave to file an amended statement of claim re-pleading the defamation claims. On the Commonwealth's application for leave to cross-appeal, the appeal was allowed, Smart AJ's order was set aside and the proceedings against the Commonwealth, save as to the defamation claims, were dismissed.
By a notice of motion filed 17 April 2007, the plaintiff sought leave to file an amended statement of claim entitled Amended Statement of Claim - Defamation Claim (the defamation proceedings). In Markisic v State of New South Wales & Ors (No 2) [2012] NSWSC 1353 at [120] the plaintiff's application for leave to file the Amended Statement of Claim (defamation claim) was refused by me.

Further submissions

The pleading before the Court of Appeal (ex A) consisted of 229 paragraphs, only 25 of which related to the defamation claim. The ASOC contains 121 paragraphs.
The plaintiff's oral submissions were lengthy and repetitive. For the purpose of succinctness, his oral submissions are summarised in the table below: ASOC Paragraph Amendment to ASOC (MFI A) Oral submissions 9 Additional sentence inserted at the end of the paragraph: The plaintiff submitted that there were no proceedings in 1998 in the Family Court of Australia between the Director-General of the Department of Community Services ('DOCS') and himself (T28 23-25). No other proceedings were instituted in the Family Court at that material time where the Plaintiff was a party. 15 New paragraph inserted: See above in [9] and the plaintiff contended that it "is very clear" William Johnson and Alwynns Rowlands assisted in deceit of the plaintiff and abduction of the child while knowing there were no proceedings instituted by the Director-General (T16 26-28). The plaintiff submitted that these facts give rise to causes of action of "conspiracy, deceit, fraud, misfeasance, breach of statutory duties and duty of care, interference with domestic relations, interference with person, trespass to person, trespass to the child, nervous shock, loss of service, trespass to land, abduction, false imprisonment and assault" (MFI G [14-15]). When conducting the above hearings William Johnson and Alwynne Rowlands knew or must have known that the proceedings No. SY6727/98 were in fact between the Plaintiff and his wife for custody of their child and the Director-General was not a party to these proceedings. But despite knowing that they heard the proceedings as between the Director-General and the Plaintiff. Two new paragraphs inserted: 17a and 17b dealt with together In September 1998 the Plaintiff received by mail a letter from organisers which contained false, fabricated and counterfeit judgment of Alwynne Rowlands. The intention was to deceive the Plaintiff to believe that the said document is a genuine judgment and he to surrender the child to the organisers. The plaintiff submitted that there was no hearing before Rowlands J and no orders made on 9 September 1998 (T20 1-3). He argued that the causes of action identified above in [15] apply. The organisers succeeded to deceive the Plaintiff to believe that the above fabricated judgment was a genuine one and the Plaintiff to institute an appeal before the Full Court of the Family Court against the said fabricated judgment. 25a New paragraph inserted: The plaintiff contended that this pleading is "quite opposite" to what was submitted from the bar table and through the evidence at the Court of Appeal (T22 8-10). The difference he alleges is shown in ex A at [78] where he submitted that the "Seventh Defendant (Mr Justice Alistair Nicholson) out of authority directed the Commissioner of the AFP to take the possession of the child while the Plaintiff was still in Court doing his submissions in the appeal." The plaintiff submits that his fresh pleading in the ASOC gives rise to the actions identified above in [15] (MFI G [25]). During the hearing of the appeal the Full Court did not make any order in relation to the child and the Plaintiff was not aware of the existence of the above document ("possession orders"). 25b New paragraph inserted: The plaintiff submitted that this new paragraph gives rise to a cause of action for fraudulent conduct and deception, through unlawful interference with his domestic relations (T30 19-22). He argued that "if this pleading was before the Court of Appeal, your Honour, I believe the judgment would have been different" (T30 25-26). The purpose of the fabrication of the above document was to be used and be presented to the Plaintiff and his family to enable unlawful entry on the Plaintiff's land and house and to unlawfully gain the possession and control of the child from the possession and custody by the Plaintiff and his family. The intention was to deceive the Plaintiff and his family to believe that the above document contains genuine orders and to surrender the child or if they take the child by force then the Plaintiff and his family to believe that it was done in accordance with the orders in the said document. The executors included (but were not limited to): a) Christopher Noble The plaintiff contended that the Australian Federal Police ('AFP') were not involved in the taking of his child (T31 32-33). He alleged that the child was taken by four executors who were not connected to the AFP in any way. The plaintiff submitted that this is "the most important allegation in my proposed Amended Statement of Claim" (T35 47-48) and made the following points in relation to it: b) Mark Yarrow ● He can now claim all damages (T36 3); 27 c) George Nichols ● The executors pretended to be the AFP and never delivered the child to DOCS (T36 31-32); d) Michael Kelsey ● He was advised by the manager of DOCS (who allegedly kept the child) that his daughter was in the physical control of Mark Twohill, solicitor of the Crown Solicitor's Office (T36 43-45); and The plaintiff relied on Markisic (No 2) at [66]: ● That it was never an established fact that the "AFP took possession of Elena": Markisic (No 2) at [66]; (T38 3). "…when the officers of the AFP took possession of Elena and gave her into the care of DOCS." 61- 81 dealt with together See pages 10-12 of the ASOC. The plaintiff submitted that his family were "traumatised, mentally distressed, in shock, panic and dismay" and he suffered "trauma and nervous shock" as a result of the unlawful taking of his child (T38 48-50). He argued that he was deceived to believe that the child was kept under control of DOCS. The plaintiff contended that the Court of Appeal did not deal with any such situation: "their judgment deals only with the DOCS; Federal Police taking the child and they giving the child to the DOCS. That is the understanding of the Court of Appeal, based on the submissions and evidence provided by the defendants" (T40 24-28). He submitted that his new pleadings in the ASOC give rise to the causes of action identified above in [15] (MFI G p4-5). 106a-106r The plaintiff claims he suffered injuries and losses as particularised in the 18 new paragraphs. See pages 16-18 of the ASOC. The plaintiff pointed out that the new paragraphs are a continuation of the alleged wrongful conduct. He submitted that the damages and wrongful acts of the defendants did not conclude with the return of the child to Macedonia in 1998 (T54 38-42).

The plaintiff argued that he had established beyond any doubt that the case is not the same case as before the Court of Appeal. In relation to considerations of cause of action estoppel and issue estoppel, the plaintiff stated (T27 48-50): "In my submission this is not re-litigation. This is new evidence, new situation, new material facts. No evidence. New submissions."
The plaintiff contended that the principles of estoppel do not apply and that he should therefore be granted leave to file the ASOC (T60 38-46).
Ms Hartstein submitted that Mr Makisic failed to comply with pleading requirements and that "there is no tenable or viable cause of action pleaded no matter how you look at what is alleged" (T64 37-40). She pointed out that there had previously been a large number of statements of claim that made allegations "of one sort or another" which had been dealt with by other judges of this court. Ms Hartstein provided the court with a 42 page table (MFI B) which attempts to draw together:

The judgment of Smart AJ in Markisic v Department of Community Services of New South Wales and Ors [2005] NSWSC 1373;
The pleading before the Court of Appeal (ex A);
The plaintiff's six page table which compares the ASOC to ex A (MFI G);
The Court of Appeal decision in Markisic (No 2); and
The plaintiff's ASOC annexed to his affidavit dated 17 September 2013 (MFI A).

Ms Hartstein drew the court's attention to 15 paragraphs in Smart AJ's judgment that dealt with the cause of action for conspiracy (T72 1-50; T73 1-50). She submitted that the sixth and seventh conspiracies in particular, dealt with at paragraphs [28] and [32] of the judgment "seems to be exactly what Mr Markisic's alleging in a number of different ways in the current document" (T73 23-24).
Another submission was that nervous shock is not a cause of action by itself, but the damage that Mr Markisic alleges being nervous shock has been dealt with by both the Court of Appeal and Smart AJ (MFI B p24). Ms Hartstein argued that the fact that "Mr Markisic now pleads it in many paragraphs as opposed to a few paragraphs before another judge or another court does not increase his chances of having psychological injury as a result of the removal of his daughter… to be a matter for which the State and the Commonwealth are liable given that there are orders of the Full Court authorising that removal": (T110 5-13); Sullivan v Moody [2001] HCA 59; 207 CLR 562.
Ms Hartstein submitted that there is nothing pleaded that is not covered by the Court of Appeal judgment and the judgment of Smart AJ (MFI B; T117 32-35). She said that the Court of Appeal did not grant leave to re-plead anything other than the defamation claims as was held in Markisic (No 2) at [90] and [91].
Another submission was that if the court was minded to find that there was some claim that had viability, then that claim would be statute barred. She contended that the ASOC is a claim for personal injury and the plaintiff would be restricted to a three year limitation period (T118 6-7).
Mr Robinson contended that the Court of Appeal's orders precluded the plaintiff from ventilating any matter other than the defamation proceedings. He stated (T155 24-36): "The short effect of the Court of Appeal's orders is that the claimant succeeded on the appeal to the extent that the dismissal defamation claims against the State and the Commonwealth was reversed, and he was given leave to apply to the judge in the defamation list for leave to file an amended statement of claim re-pleading the defamation claims. On the cross-appeal, the Commonwealth obtained orders which overruled the leave which Smart AJ had granted the claimant to apply to amend his statement of claim in a limited way which could have kept alive a claim for damages for nervous shock."
Mr Robinson submitted that action estoppel applied in the present proceedings in "its extended sense… in the sense of an abuse of process" (T166 19-20). He argued that the ASOC should not be allowed because it constitutes an abuse of process within the formulation of Reichel v Magrath (1889) 14 App Cas 665 at 668. He contended that the ASOC is an attempt to re-litigate issues expressly or impliedly which have been authoritatively decided by the Family Court of Australia (T168 22-25). Mr Robinson relied on the judgment of Giles JA in Markisic (No 2) at [45] and the cases of Cabassi v Vila ('Cabassi') [1940] HCA 41; (1940) 64 CLR 130 and Cachia v Westpac Financial Services [2005] NSWCA 239 to show that judgments of the Family Court cannot be ignored and stepped around by pleading different facts to the ones before the Court of Appeal. Furthermore, he submitted that there can be no collateral attack on the Court of Appeal's judgment: Cabassi (T173 42-45).
The final submission made by Mr Robinson, was that the form of the ASOC is defective because it is unclear what actions and omissions the Commonwealth is said to be liable or accountable for, or whom on behalf of the Commonwealth, did what action or made what omission (T191 8-11).

Decision

At the heart of the ASOC are the plaintiff's assertions that there were no proceedings in the Family Court of Australia between the Director-General of the Department of Community Services (the Director-General) and himself, and that the orders of the Family Court were fabricated (ASOC 9, 15, 17a, 17b, 25a and 25b).
In Markisic v The States of New South Wales & Ors [2012] NSWSC 1237 at [9]-[13], I detailed the exchange between myself and the plaintiff as to the contention that he was not a party to the proceedings in the Family Court where the Director-General was the applicant and he was the respondent. The plaintiff's attention was directed to his application in 2008 to adjourn the defamation proceedings to enable him to apply to set aside the orders of the Family Court and the Full Court of the Family Court that were made in proceedings between the Director-General and himself. Exhibits A, B, C, G, F and ex one are copies of those orders. The plaintiff's argument was that these orders were in evidence in the defamation proceedings but not in evidence in his application for leave to file the ASOC. Furthermore, he argued that the exhibits are "fabricated and false documents".
As I recounted in Markisic v The State of New South Wales & Ors (No 2) [2012] NSWSC 1353 at [6], the plaintiff informed the court that nothing had happened in the Family Court, that no judgments or orders were set aside.
Contrary to the plaintiff's submission, the orders of the Family Court cannot be ignored. In my view, it was unnecessary for the State and the Commonwealth to tender those orders in the present motion. Both motions involve an application to file an amended statement of claim and the same parties. In any event, the integrity of the system of administration of justice would be seriously undermined if the court was obliged to disregard its knowledge of the Family Court proceedings and the falsity of the plaintiff's claim of the non-existence of proceedings between the Director-General and himself.
The plaintiff has been reminded on many occasions that he cannot collaterally attack the orders of the Family Court. This prohibition extends beyond the orders of the Family Court to the conduct of the judicial officers of that court. As was said in Markisic (No 2) at [45] (Giles JA with whom Santow and Ipp JJA agreed): "The orders of the Family Court were valid unless and until set aside, and if what was done was authorised by the orders Mr Markisic could not collaterally attack them by complaining of conduct whereby they were obtained, or say that any harm he suffered was caused by wrongfulness in the conduct leading to the making of the orders" (italics added)."
By making assertions in the ASOC of dishonest and deceitful conduct particularly on the part of Rowlands J, the plaintiff has ignored the prohibition apparently in the belief that the orders of the Family Court and the judgment of the Court of Appeal can be avoided by pleading different facts to those that were before Smart AJ in Markisic (No 1). Smart AJ observed at [32]: "The Seventh Conspiracy alleges that in about September 1998 either a solicitor of the AGD and/or a solicitor of DOCS and/or a solicitor of CSO and/or Counsel and/or other unknown officers of the State and/or the Commonwealth made an agreement out of the court room with Justice Rowlands that he would assist them to wrongfully return the child to Macedonia and to deprive the plaintiff of the child and/or of his rights towards the child by fraud. This scandalous allegation should be struck out. This is a matter that lay within the jurisdiction of the Family Court and especially the Full Court. This is not a matter for this Court" (underlining added).
The scandalous accusations dealt with by Smart AJ bear a strong similarity to the allegations in the ASOC. In reality, by ignoring the camouflage, the plaintiff is attempting to re-litigate the issues which he lost in Markisic (No 1) and Markisic (No 2).
A similar observation is to be made about the assertion in the ASOC paragraph 27 that the AFP was not involved in the taking of Elena into the care of DOCS. It seems to me that it makes no difference in the plaintiff's claim against the defendants whether "the executors" were members of the AFP or were pretending to be the AFP.
In Reichel v Magrath (1889) 14 App Cas 665, Lord Halsbury L.C. said at 668: "... it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ... There must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure ...".
Handley JA in Rippon v Chilcotin [2001] NSWCA 142 quoted with favour at [31] what was said by Hunt CJ at CL in Haines v Australian Broadcasting Corporation [1995] NSWSC 136; (1995) 43 NSWLR 404 at 414: "There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath ... The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former ... It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued - by which I mean that ... the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance ... In normal circumstances the decision disposing of the issue must have been a final one ... There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice ... all the circumstances of the determination in the earlier case may be considered ...".
In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14 at [33] (French CJ observed): "Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined."
Broadly stated, the issues of the falsity of the Family Court orders and the subsequent removal of the child were of fundamental importance in Markisic (No 1) and Markisic (No 2). The issues proposed to be raised in the ASOC when the camouflage is removed are identical in substance to those determined by the Court of Appeal in Markisic (No2). By continuing to collaterally attack the judicial officers of the Family Court and the orders of the court and by seeking to re-litigate issues determined in the previous proceedings, the ASOC is oppressive and unfair to the State and the Commonwealth.
What was said by Bryson JA (see [3] above) did not concern the principles of abuse of process. The integrity of the system of administration of justice will be undermined if leave was granted to file the ASOC. In my opinion the proposed ASOC is an abuse of process.

Order

Accordingly, I make the following order:
The plaintiff's application to file a proposed amended statement of claim (other torts) (ASOC) is refused.
The plaintiff is to pay the defendants' costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2015

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